Casco National Bank v. Shaw

79 Me. 376 | Me. | 1887

Walton, J.

We think the defendants had due notice of the dishonor of the notes declared on. Notices were addressed to them at their former place of business, where their affairs were being settled up by a trustee, to whom they had made an assignment for the benefit of their creditors, and we have no doubt that the notices were received by the trustee. Notices so sent and received are sufficient. Bank of America v. Shaw, 142 Mass. 290. Better reported in 2 New Eng. Rep. 572. In the case cited the notice was to the same firm and under substantially the same circumstances as in the cases now before us, and the notice was held good, "because it was sent to what had been the place of business of the firm, where its affairs were actually in process of settlement under the trust.”

It is objected that the notices were not properly mailed, because they were dropped into a street letter box. We think this is not a valid objection. Street letter boxes are authorized by an act of Congress (R. S., U. S., § 3868), and are as completely and as exclusively under the care and control of the postoffice department as boxes provided for the reception of letters within the postoffice buildings themselves ; and we think a letter deposited in a street letter box, which has been put up by the postoffice department, is as truly mailed, within the meaning of the law, as if it were deposited in a letter box within the postoffice building itself. It has been held that a delivery to a letter carrier is sufficient. Pearce v. Langfit, 101 Penn. St. 507.

Payments are claimed. Since the commencement of these actions the bank has received $44,398.17 from F. A. Wyman, which the defendants claim should be credited to them. The credit can not be allowed. The money was not delivered or received as payments on the notes in suit. It was received on a contract by which the bank agreed to assign to Wyman, the notes in suit, and the actions thereon, "with all benefit of attachments, if any, made in said suits,” and this contract has been assigned by Wyman to a third party. It is clear therefore that the defendants are not entitled to the benefit of these payments, So far as appears they have neither a legal nor an equitable right to the benefit of them.

Payments to the amount of $11,720.52 have been made by C. W. Clement and C. H. Ward, on such of the notes in suit as are signed by them, which willof course be allowed, and the defendants will have the benefit of them.

The court is asked to continue these actions to await the result of insolvency proceedings which they aver are pending against them in this state. We are not satisfied that this request ought to be granted. The petitions have been pending since November, 1883, and yet no adjudication has been had upon them ; and we doubt if there is -any intention to prosecute them further; for the petitioning creditors appear to have been settled with and their claims assigned to the defendants’ trustee, Wyman. Continuances for such a cause are discretionary with the court; they can not be claimed as a matter of right; and they will only be granted when the court is satisfied that justice will be thereby promoted. Schwartz v. Drinkwater, 70 Maine, 409. We are not satisfied that justice would be thereby promoted in these actions. The request is therefore denied.

Four actions between the same parties have been submitted to the law court upon one report of evidence; and the parties have agreed that the court shall render such judgment in each case as the legal rights of the parties may require. It is the opinion of the court that the plaintiff is entitled to judgment in each of the four actions, and such judgments will accordingly be entered.

Peters, C. J., Virgin, Libbey and Emery, JJ., concurred. Haskell, J., did not sit, having been of counsel.